Major Federal Actions Significantly Affecting the Quality of the Space Environment: Applying NEPA to Federal and Federally Authorized Outer Space ...
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Major Federal Actions Significantly
Affecting the Quality of the Space
Environment: Applying NEPA to Federal
and Federally Authorized Outer Space
Activities
Alexander Q. Gilbert, Monica Vidaurri†
The United States’ landmark environmental law, the National Environmental
Policy Act (“NEPA”), requires U.S. federal agencies to consider the
environmental impacts of “major federal actions significantly affecting the
quality of the human environment.” The major agencies involved in space
activities or regulation generally limit their environmental reviews of space
activities, with only some consideration of terrestrial and space environmental
impacts. This review argues that NEPA and existing case law supports the
proposition that the “human environment” includes the “outer space
environment.” It reviews the historical role of space in human culture, emerging
commercial and scientific uses of space, and the potential impacts of NewSpace
activities on both the terrestrial and space environments. By examining statutory
language and legislative intent, this review finds that current agency practices
are likely not compliant with NEPA, particularly as they relate to not considering
terrestrial environmental impacts from federally-authorized space activities.
Current case law on NEPA extraterritoriality, particularly EDF v. Massey,
further supports the application of NEPA to the space environment. U.S.
spacecraft fall under the exclusive jurisdiction of the U.S., mitigating concerns
about the presumption against extraterritoriality. As NEPA is only a process
statute, including space environments are unlikely to hinder exploration or use of
space while informing the public about the full environmental impacts of human
space activities, consistent with NEPA’s original purpose.
Payne Institute for Public Policy, Colorado School of Mines; Nuclear Innovation Alliance
† Howard University/NASA Goddard
233234 University of California, Davis [Vol. 44:2
I.INTRODUCTION ............................................................................................... 234
II.OUTER SPACE AS A HUMAN ENVIRONMENT.................................................. 238
A. What constitutes the space environment? .................................... 238
B. New Uses of Space Could Require Reevaluation of NEPA ......... 240
C. Human pollution of outer space ................................................... 241
III.NEPA’S STATUTORY TEXT AND LEGISLATIVE HISTORY ............................. 242
A. Statutory Text and Procedural Requirements ............................... 243
B. Underlying definitions within the statute ..................................... 245
C. Identifying legislative intent through legislative history .............. 247
IV.OUTER SPACE IN INTERNATIONAL LAW AND EXECUTIVE
IMPLEMENTATION OF NEPA ................................................................. 252
A. International Law Framework for Outer Space Activities ........... 253
B. Federal Executive implementation of NEPA EIS
Requirements for Outer Space Activities ..................................... 255
V.EXTRATERRITORIALITY OF NEPA’S EIS REQUIREMENTS AND JUDICIAL
PRECEDENT........................................................................................... 257
A. The Presumption Against Extraterritoriality ................................ 258
B. NEPA Case Law on Extraterritorial Application pre-Massey ...... 258
C. Environmental Defense Fund vs Massey: NEPA for the
Global Common ........................................................................... 261
D. Subsequent case law ..................................................................... 263
E. Application of NEPA to the Atmosphere ..................................... 263
F. Applying Case Law to Outer Space as a Global Commons ......... 265
VI.CONCLUSION AND RECOMMENDATIONS ...................................................... 271
I. INTRODUCTION
Two major events in 2019 reignited concerns about the impacts of human
activities on the outer space environment. The first event was the Space
Exploration Technologies (“SpaceX”) launch of its planned satellite
megaconstellation, Starlink. This led to broad concerns about light pollution and
radio astronomy interference, from both the general public and professional
astronomers.1 Between Starlink and megaconstellations planned by other private
companies, the total number of orbital satellites could greatly increase. The
second major event occurred in mid-2019, when the SpaceIL mission suffered a
crash landing on the moon. Unknown to SpaceIL or the Federal Aviation
Administration (“FAA”), the lander contained illicit cargo of human DNA, as well
as miniature animals capable of surviving in extreme environments called
tardigrades. The cargo was placed on the spacecraft by the company Arch
1 Ramon J. Ryan, Note, The Fault In Our Stars: Challenging the FCC’s Treatment of
Commercial Satellites as Categorically Excluded From Review Under the National Environmental
Policy Act, 22 VAND. J. ENT. & TECH. L. 923-25 (May 2020).2021] Major Federal Actions Significantly Affecting Space Environment 235
Foundation.2 Though the survivability of tardigrades on the lunar surface is
unlikely, this raises serious questions about the mission authorization process,
space environmental governance, and planetary protection.3
While both controversies were foreseeable, the federal agencies responsible for
mission authorization, the FAA and the Federal Communications Commission
(“FCC”) for SpaceX and FAA for SpaceIL, did not conduct a National
Environmental Policy Act (“NEPA”) review of the space activities of either
mission. NEPA is required for any “major federal actions which significantly
affect the quality of the human environment.” 4 Excluding these missions from
NEPA reviews raises questions about agency interpretations of statutory
requirements, as well as the definition of the human environment.5
This article evaluates whether NEPA should apply to major federal actions that
significantly affect the outer space environment. First, we review the physical and
legal characteristics of outer space, describe humanity’s historic and planned use
of space, and identify potential space environmental impacts. Second, we analyze
the statutory language and legislative history of NEPA, identifying evidence that
outer space constitutes part of the “human environment.” Third, we evaluate the
existing international and national governance framework for space missions,
particularly how NEPA is being applied by federal agencies. Fourth, we review
court cases related to the extraterritorial application of NEPA, especially the DC
Circuit case Massey vs. EDF which extended NEPA’s requirements to federal
agency actions in Antarctica, as well as other cases in the global commons. 6
Although multiple factors led to the emergence of the environmental movement
in the late 1960s and early 1970s, one picture played an outsized role as a catalyst.
In December 1968, a photo from Apollo 8 called “Earth Rise,” captured the
cosmic and isolated nature of spaceship Earth. 7 In 1969, while NEPA was being
debated in the halls of Congress, one of the most important events in human
history happened: a crewed mission landed on the Moon and were deemed the
first explorers of a celestial body beyond the Earth. This event was noted in the
NEPA hearings by multiple representatives as potential derivatives for the human
environment: space. Less than six months later, Congress passed NEPA to
incorporate environmental planning and values into federal government
2 Christopher D. Johnson, et al., The curious case of the transgressing tardigrades (part 1), THE
SPACE REVIEW (Aug. 29, 2019), https://www.thespacereview.com/article/3783/1.
3 Christopher D. Johnson, et al., The curious case of the transgressing tardigrades (part 3), THE
SPACE REVIEW (Sep. 16, 2019), https://www.thespacereview.com/article/3794/1.
4 42 U.S.C. § 4321 (1970).
5 See generally 42 U.S.C. § 4321 (1970).
6 Env’t. Def. Fund, Inc. v. Massey, 986 F.2d 528 (1993).
7 Marc Hudson, Earth Day at 50 – what the environmental holiday means today, THE
CONVERSATION (April 22, 2020), https://theconversation.com/earth-day-at-50-what-the-
environmental-holiday-means-today-136415.236 University of California, Davis [Vol. 44:2
operations.8 Over the next several years, multiple pieces of environmental
legislation were passed.9
Even though the moon landing helped catalyze profound environmental reform,
environmental law has yet to extend to the final frontier. Since the Apollo
missions, human activities have been limited to the Low Earth Orbit (“LEO”). A
handful of robotic missions have visited the Earth’s moon, asteroids, and other
planets.10 Originally, all space missions were funded and performed by
governments.11 The relatively small scale of space activities limited the impacts
of human activities on the space environment.
Recent advances in technology and the commercialization of space activities
are poised to rapidly change humanity’s relationship with the space environment.
While commercial satellites have provided telecommunication services for
decades, falling costs are opening up new government and commercial
activities.12 These “NewSpace” activities include megaconstellations for internet
and navigation, orbital tourism, space mining, space manufacturing, satellite
servicing, and space nuclear power, among others. 13 Notably, non-government
entities are now looking to visit, explore, and potentially exploit or inhabit
celestial bodies like the Moon, asteroids, and Mars.14
While imperfect, the environmental law regime has made major progress in
identifying, preventing, mitigating, and hypothesizing harmful environmental
impacts on Earth. In particular, NEPA has radically transformed how the federal
government considers environmental impacts in its decision making. Over almost
five decades of litigation and agency action, NEPA has become a key procedural
tool for the federal government to identify and manage the environmental impacts
of its actions, or for private citizens, to hold the government to account if it fails
to do so. Notably, private sector activity authorized by the federal government
generally falls under NEPA’s umbrella. 15
Most existing federal agency interpretations hold that NEPA’s Environmental
Impact Statement (“EIS”) requirement only applies to the Earth environment. 16
8 See generally 42 U.S.C. § 4321 (1970).
9 See generally 33 U.S.C § 1251 et seq; 42 U.S.C. §§6901-6992k; 42 U.S.C. § 9601 et seq; 16
U.S.C. § 1531 et seq.
10 See generally ROD PYLE, INTERPLANETARY ROBOTS: TRUE STORIES OF SPACE EXPLORATION
(2019).
11 Elliot Holokauahi Pulham, The New Space Age, 1 NEW SPACE III (2013).
12 Jeff Matthews, The decline of commercial space launch costs
(https://www2.deloitte.com/us/en/pages/public-sector/articles/commercial-space-launch-cost.html
(last visited April 18, 2021).
13 Pulham, supra note 10.
14 See GENERALLY NAMRATA GOSWAMI AND PETER A. GARRETSON, SCRAMBLE FOR THE SKIES:
THE GREAT POWER COMPETITION TO CONTROL THE RESOURCES OF OUTER SPACE (2020).
15 COUNCIL ON ENV’T QUALITY EXEC. OFFICE OF THE PRESIDENT, A Citizen’s Guide to the
NEPA: Having Your Voice Heard (2007) at 4.
16 See generally Daria Diaz, Trashing the Final Frontier: An Examination of Space Debris from
a Legal Perspective, 6 TUL. ENV’T. L.J. 369 (1993) (on file with author).2021] Major Federal Actions Significantly Affecting Space Environment 237
Although federal space missions and commercial launches licensed by the federal
government conduct NEPA analyses for the impact of rocket launches on the
terrestrial environment, their analyses generally do not extend into outer space. 17
Neither the FAA, responsible for authorizing satellite launches, nor the FCC,
responsible for licensing use of radio spectrum and hence orbital satellite
navigation, consider light pollution, radio pollution, space debris, or other space
environmental impacts in their NEPA analyses for satellite launches or
operation.18 The FCC has a NEPA categorical exclusion for satellite activities,
which means that FAA is not required to complete an EIS for licensing such
activities.19 Due to the FAA treating payload review separately from its NEPA
requirements, the FAA did not evaluate the impacts of the SpaceIL mission to the
Moon and did not have procedures in place to discover the illicit tardigrade and
human DNA cargo.20
To date, no court cases have challenged whether outer space should be
considered in NEPA analyses. Gerrard and Barber describe the situation best:
“However, no court has had to confront the question of whether the
“environment” protected by NEPA includes outer space. The notion of the
environment encompasses our environs and our surroundings, and the idea
of and proximity and of potential impact (however indirect) upon ourselves
is implicit. Though NEPA was enacted the same year that man first walked
on the moon, it does not appear that NEPA’s framers considered whether the
new law would apply to activities in space.”21
Nevertheless, several court cases and many law reviews have examined the
extraterritorial application of NEPA’s requirements to places outside the United
States (U.S.), such as the global commons or federal activities in other countries.22
When it comes to outer space activities and NEPA there is a critical distinction
between activities: those that occur in the outer space environment that impact the
earth environment (such as satellite light pollution or sample return) and those
17 Final Environmental Assessment and Finding of No Significant Impact for SpaceX Falcon
Launches at Kennedy Space Center and Cape Canaveral Air Force Station, FEDERAL AVIATION
ADMINISTRATION (July 2020), https://www.faa.gov/space/environmental/nepa_docs/
media/SpaceX_Falcon_Program_Final_EA_and_FONSI.pdf.
18 Michael R. Migaud, et al., Developing an Adaptive Space Governance Framework, 55 SPACE
POLICY (2021); Ryan, supra note 1.
19 Ryan, supra note 1.
20 Christopher D. Johnson, et al., The curious case of the transgressing tardigrades (part 2), THE
SPACE REVIEW (Sep. 3, 2019), https://www.thespacereview.com/article/3786/1.
21 Michael B. Gerrard and Anna W. Barber, Asteroids and Comets: U.S. and International Law
and the Lowest-Probability, Highest Consequence Risk, 6 NYU ENV’T. L.J. 4 (1997).
22 See generally Thomas E. Digan, NEPA and the Presumption against Extraterritorial
Application: The Foreign Policy Exclusion, 11 J. CONTEMP. HEALTH L. & POL’Y 165 (1995); The
Extraterritorial Scope of NEPA’s Environmental Impact Statement Requirement, 74 MICH. L. REV.
349 (1975); David Heywood, NEPA and Indirect Effects of Foreign Activity: Limiting Principles from
the Presumption Against Extraterritoriality and Transnational Lawmaking, 2013 BYU L. REV. 691
(2014).238 University of California, Davis [Vol. 44:2
occurring in the space environment that impact the space environment (such as
orbital debris or landing lifeforms on the Moon).
II. OUTER SPACE AS A HUMAN ENVIRONMENT
Humanity has utilized and relied upon the space environment for as long as
history has been recorded. Historically, the sun, the Moon, stars, planets, comets,
and other astronomical phenomena played key roles in religion, science, time-
keeping, history, and navigation, among providing other cultural and aesthetic
values. Scientific observations of celestial bodies have been key to unlocking
advances in physics. The direct and physical human use of space began in 1957
with the launch of the Sputnik satellite, followed shortly after by animal and
human astronauts.23 As space technology matured, human uses of space increased
greatly. During the Cold War, space played a central role for military applications
and, through the space race, international prestige.24 In 1969, the Apollo 11 lander
brought humans to the Moon, representing the first direct human use of a celestial
body.25
Since Apollo 11, more humans have visited the Moon, and landers, rovers, and
orbiters have been introduced to the Moon and to other planets and celestial
bodies. The number of nations participating in space has grown, as has the
participation of private and commercial actors. Today, space is used for
commercial, scientific, and military purposes.26 In particular, outer space has
become indispensable for everyday navigation (particularly GPS) and
telecommunications, both civilian and military. However, the years to come are
promising for human space exploration, both scientific and non-scientific, and the
uses of space may soon expand to economic sectors such as tourism, mining, and
others.27 As human uses of space, including human presence, expand rapidly,
employing a proactive policy for the use and development of the space
environment is critical to avoid unintended affects.
A. What constitutes the space environment?
As an initial factual matter, there is no definition of what constitutes outer space
under international or U.S. law. 28 This is one of the greatest ambiguities in space
law, as the lack of a single, clearly-defined point in space that marks the end of
23 See generally Michael J. Neufield. SPACEFLIGHT: A CONCISE HISTORY (2018).
24 Id.
25 Id.
26 Alex Gilbert and Morgan Bazilian, The Geostrategic Importance of Outer Space Resources:
Is space mining the final frontier? THE NATIONAL INTEREST (May 15, 2020),
https://nationalinterest.org/feature/geostrategic-importance-outer-space-resources-154746.
27 Id.
28 Hao Lieu &Fabio Tronchetti, Regulating Near-Space Activities: Using the Precedent of the
Exclusive Economic Zone as a Model? 50 OCEAN DEV. & INT’L L. 91 (2019); John A. Vosburgh,
Where Does Outer Space Begin?, 56 A.B.A. J. 134, 134 (1970).2021] Major Federal Actions Significantly Affecting Space Environment 239
Earth’s airspace is critical for determining where national jurisdiction ends and
international jurisdiction begins.29
Today, references to the “space environment,” in technical settings, typically
describe conditions that reside roughly 100 kilometers above the surface of the
earth, otherwise known as the Karman line.30 The Karman line is derived from the
altitude at which orbital velocity, as opposed to lift, is needed to maintain
altitude.31 While NASA uses the Karman line as its marker for the awarding of
astronaut wings, the Air Force recently moved their astronaut wings down to 50
miles.32 Above this line are factors that are often characteristic of space
conditions, such as unfiltered solar radiation and winds, presence of a vacuum,
extremely cold temperatures, meteoroids, magnetic fields, and space debris.3334
Other definitions could place “outer space” significantly higher than the
Karman line. Outer space, in these assumptions, could be characterized as the
region beyond the influence of the Earth’s atmosphere, which extends as far as
6,200 miles. The upper layers of the atmosphere include the mesosphere (~31-53
miles), thermosphere (~50-620 miles), and the exosphere (which extends from the
thermosphere up to ~6,200 miles).35
Another definition could consider outer space as lying beyond the Earth’s
magnetosphere, the magnetic fields from Earth’s core which protects the planet
from cosmic radiation.36 The magnetosphere can extend as little as 40,000 miles
from the Earth on the dayside and as much as 4.0 million miles on the nightside. 37
Earth’s gravity could also be plausible boundary, which exerts so much force on
the Moon that it is tidally locked to Earth at its distance of greater than 200,000
miles.38 Though incredibly small, the Earth exerts gravitation force on all solar
system objects.39
29 Id. at 3.
30 Jonathan C. McDowell, The edge of space: Revisiting the Karman Line, 151 ACTA
ASTRONAUTICA 668 (Oct. 2018).
31 Id.
32 Bhavya, Lal & Emily Nightingale, Where is Space? And Why Does That Matter? EMBRY-
RIDDLE AERONAUTICAL UNIVERSITY (Nov. 5, 2014) Space Traffic Management Conference 16
https://commons.erau.edu/stm/2014/wednesday/16.
33 McDowell supra note 29.
34 Finckenor, Miria M. & Kim K. de Groh, The International Space Station (ISS) Researcher’s
Guide: Space Environmental Effects, NASA (2015).
https://www.nasa.gov/sites/default/files/files/NP-2015-03-015-JSC_Space_Environment-ISS-Mini-
Book-2015-508.pdf.
35 JOHN MARSHALL & R. ALAN PLUMB, ATMOSPHERE, OCEAN, AND CLIMATE DYNAMICS: AN
INTRODUCTORY TEXT (2008).
36 Diagram of Earth’s magnetic Field, NASA https://www.jpl.nasa.gov/
nmp/st5/SCIENCE/magnetosphere2.html (last visited April 18, 2021).
37 Id.
38 Puthalath Koroth Raghuprasad, Synchronous, Nonsynchronous and Negative Rotations: How
Spin and Gravity Orchestrate Planetary Motions, 12 APPLIED PHYSICS RESEARCH 1, 1-4 (2020).
39 Id.240 University of California, Davis [Vol. 44:2
These ambiguous definitions raise the challenge of whether or not to include
certain regions of human activity or other celestial bodies in the definition of
“outer space” and the space environment.40 Areas that lie beyond the Karman line,
where humanity has explored (with human crew or robotically) have also been
historically referred to as a “space environment.” Despite ambiguities in
definitions of Earth’s physical characteristics, common locations in space are
denoted by use and distance.
LEO, which constitutes everything up to 2,000 kilometers (km) from the
surface, is the primary location for most existing human space objects. Notably,
all human space missions, except Apollo, occurred in LEO. LEO is also home to
the International Space Station which has had a continual human presence since
2000.41 Robotic commercial, scientific, government, and other private space
activities occur in other locations such as:
Geosynchronous Earth orbit (estimated 35,786km above the equator,
referred to as GEO)
High earth orbit (altitudes above GEO, referred to as HEO)
Cislunar space (locations within the Moon’s orbit, including Earth),
Deep space (loosely defined, typically beyond cislunar space)
For the purposes of this paper, we refer to space as meaning locations beyond
the 100-mile Karman line, unless otherwise specified.
B. New Uses of Space Could Require Reevaluation of NEPA
Regardless of the definition of outer space and the space environment, the
historical and current uses of the space environment by humans (to include other
solar system bodies) are longstanding and irrefutable. Recent proposals for outer
space activities include actions that once seemed relegated to the realm of science
fiction including:
Government and commercial crewed missions to the Moon and Mars,
including permanent stations
Orbital and space tourism
Space mining of the Moon and asteroids
In-orbit and in-situ manufacturing
Space nuclear power to support all the above activities
Space-based solar power for delivery to Earth
These advances are exciting and can bring significant social, economic, and
scientific benefits. However, some motivations for these advances are harmful or
excessive: a clear example is a recent proposal to use the night sky for advertising
40 Juan Davalos, International Standards in Regulating Space Travel: Clarifying Ambiguities in
the Commercial Era of Outer Space, 30 EMORY INT’L L. REV. 597, 609 (2016).
41 NASA Counts Down to Twenty Years of Continuous Human Presence on International Space
Station, NASA (Oct. 31, 2019). https://www.nasa.gov/feature/nasa-counts-down-to-twenty-years-of-
continuous-human-presence-on-international-space-station.2021] Major Federal Actions Significantly Affecting Space Environment 241
products to Earth from satellites.42 The ushering in of a new technological and
scientific age in space must be accompanied by a reevaluation of the legal
landscape surrounding the space environment, including necessary progressive
and long-term-minded revisions. As discussed in Section 3, one of the original
components of NEPA was to proactively consider environmental impacts before
a project occurred, so that negative effects could be identified and mitigated.
For purposes of NEPA, human impacts on the space environment can generally
be divided into two non-exclusive categories: space activities in outer space that
impact the Earth environment and space activities which impact the space
environment. As this paper focuses on whether NEPA should apply to outer space
activities, we consider this distinction but do not analyze whether NEPA would
require analysis of a specific environmental impact (i.e. light pollution from
spacecraft). The focus is on the threshold issue of whether and when outer space
activities trigger the Environmental Assessment process.
However, there is a third category worth noting that is implicated by this
analysis – environmental effects on Earth that impact outer space activities. The
most worrisome of these is the use of 5G whose transmission bands are expected
to reduce the accuracy of satellite-based hurricane forecasting.43 In this specific
case, the causal chain passes through space (via earth observation) but has real
impacts for people who may be hurt or suffer losses due to reduced weather
forecasting accuracy.
C. Human pollution of outer space
While humans use space for various activities, the space landscape is altered
because of scientific and now commercial practices. Chief among these changes
is space debris, which consists of decommissioned satellites, debris from rocket
launches, and debris from previous space collisions. 44 Space debris is considered
one of the primary threats to U.S. interests in LEO and GEO. 45 More recently, the
increase in satellites raises concerns about how they will affect Earth-based
astronomy. One analysis found that light from megaconstellations could ruin 1/3
of the images from a major new telescope. 46 Light pollution from satellites can
42 Holly Brockwell, The great ad-space race: the history of space advertising, TECHRADAR
(Mar. 30, 2019), https://www.techradar.com/news/the-great-ad-space-race-the-history-of-space-
advertising.
43 Marguerite Reardon, 5G networks could wreak havoc on weather forecasting, officials warn,
CNET (May 17, 2019, 9:16 AM), https://www.cnet.com/news/officials-warn-5g-networks-could-
wreak-havoc-on-weather-forecasting/.
44 Steven A. Hildreth and Allison Arnold, CONGRESSIONAL RESEARCH SERV., THREATS TO U.S.
NATIONAL SECURITY INTERESTS IN SPACE: ORBITAL DEBRIS MITIGATION AND REMOVAL, (January 8,
2014).
45 Id. at 1, 13.
46 Daniel Clery, Satellite megaconstellations menace giant survey telescope, 367 SCIENCE 965
(2020).242 University of California, Davis [Vol. 44:2
impact aesthetic and cultural uses of the sky, such as wilderness, while radio
interference from satellites can impact radio astronomy.
Other examples of human pollution of space include, but are not limited to:
radiological risks from space nuclear systems (public panic from the Cassini
launch), toxic debris wastes from space propellants, space debris and space waste,
biological and other contamination of celestial bodies that can harm forms of in-
situ resource utilization, light pollution from satellites, and impacts to wilderness
solitude. 47
Past missions have led to human-made spacecraft visiting other worlds with
potential contaminants.48 It is impossible to fully decontaminate spacecraft,
machinery, and technology of all microbial life without damaging the spacecraft
and technologies themselves. We have left bags of human feces, golf balls, human
DNA samples, and even tardigrades on the lunar surface.49 Neither rover nor
tardigrades hold any sort of immediate threat for contaminating a certain area.
Nevertheless, the possibility for irreversible contamination and pollution that
prevents other uses of a celestial body is ever present. With a coming surge in
human space activity, proactive evaluation of potential impacts through
expanding NEPA processes to space can identify potential pollution before it
occurs, leading to more options for mitigation and management.
III. NEPA’S STATUTORY TEXT AND LEGISLATIVE HISTORY
To determine whether Congress intended outer space to be considered part of
the environment for purposes of NEPA, we turn to an analysis of statutory
language and legislative history. While elements of the law existed in various
legislative proposals during the 1960s, the proposed legislation that would
eventually become NEPA has a brief legislative history. Both the House and
Senate bills were proposed in early 1969, with hearings in both chambers in mid-
1969.The Senate bill passed in July, while the House bill passed in September,
with a conference committee in December.50 The conference bill passed Congress
in December 1969 and was signed into law by President Nixon in January 1970. 51
47 David Grinspoon, Cassini’s Environmental Triumph, THE ATLANTIC (September 14, 2017),
https://www.theatlantic.com/science/archive/2017/09/cassini-protests-environmentalism/539865/;
Troy Farah, Light pollution from satellites will get worse. But how much? ASTRONOMY (June 14,
2019), https://astronomy.com/news/2019/06/light-pollution-from-satellites-will-get-worse-but-how-
much.
48 Monica Vidaurri, Alia Wofford, Jonathan Brande, Gabriel Black-Planas, Shawn Domagal-
Goldman, Jacob Haqq-Misra, Absolute Prioritization of Planetary Protection, Safety, and Avoiding
Imperialism in All Future Science Missions: A Policy Perspective, 51 SPACE POLICY (November
2019).
49 Meghan Bartels, The Weirdest Things Apollo Astronauts Left on the Moon, SPACE.COM (July
21, 2019), https://www.space.com/weird-stuff-apollo-astronauts-left-moon.html.
50 Linda Luther, The National Environmental Policy Act: Background and Implementation¸
CONGRESSIONAL RESEARCH SERVICE (2008).
51 Id. at 6.2021] Major Federal Actions Significantly Affecting Space Environment 243
Notably, the version that originally passed the House did not include the action
forcing provision that would lead to EISs (Section 102(2)(C)); the section was
incorporated during conference.52 There was limited legislative discussion of the
EIS process itself.
As an initial matter, Congress was concerned with identifying and managing
the ongoing negative environmental impacts known at the time. With the space
age barely a decade old, identified environmental problems were generally limited
to those on Earth. Key concerns raised were human interactions with air, water,
wildlife, and resource management, to name but a few. Often called the Magna
Carta of environmental law, the National Environmental Policy Act of 1969 was
the foundational law for the U.S.’ environmental governance regime.53
A. Statutory Text and Procedural Requirements
The statute itself is relatively short with most of the text focusing on the creation
of an executive body for environmental management, the Council on
Environmental Quality (“CEQ”). However, the central action-forcing provision
of NEPA has turned out to be Section 102(2)(C):
“The Congress authorizes and directs that, to the fullest extent possible: (1)
the policies, regulations, and public laws of the United States shall be
interpreted and administered in accordance with the policies set forth in this
chapter, and (2) all agencies of the Federal Government shall— . . .
“(C)include in every recommendation or report on proposals for legislation
and other major Federal actions significantly affecting the quality of the
human environment, a detailed statement by the responsible official on—
(i)the environmental impact of the proposed action,
(ii)any adverse environmental effects which cannot be avoided should the
proposal be implemented,
(iii)alternatives to the proposed action,
(iv)the relationship between local short-term uses of man’s environment and
the maintenance and enhancement of long-term productivity, and
(v)any irreversible and irretrievable commitments of resources which would
be involved in the proposed action should it be implemented.”54
This provision requires “all agencies of the Federal government” to prepare “a
detailed statement” on “major Federal actions significantly affecting the quality
of the human environment.”55 Subsequently, the analysis required in Section
52 Id. at 5.
53 42 U.S.C. § 4321 (1970).
54 42 U.S.C. § 4332 (1970).
55 Id.244 University of California, Davis [Vol. 44:2
102(2)(C) has become known as an environmental impact statement (“EIS”). 56
When determining whether a major federal action requires an EIS, federal
agencies must perform an environmental analysis (“EA”). 57 If the action does not
significantly affect the environment, the agency issues a finding of no significant
impact (“FONSI”) while significant affects require preparation of an EIS. 58 A full
EIS must consider each of the factors outlined in 102(2)(C)(i) to 102(2)(C)(v). 59
The process, including EAs, FONSIs, and EISs, can allow persons to sue Federal
agencies if the procedural requirements under the Administrative Procedures Act
are not followed.60 Importantly, courts have found that the EIS requirement is a
procedural requirement, not a substantive one; agencies are required to perform
the analysis but are not obligated to pursue any specific action identified in the
analysis.61
In applying the EIS process to the outer space environment, an analysis must
determine that there is (1) a “major Federal action” that (2) “significantly affects
the quality” of the (3) “human environment.” 62 The question of including outer
space as an environmental domain is primarily concerned with the third
component of NEPA. Rocket launches by federal agencies are generally
considered to be major Federal actions that trigger an EA process, as demonstrated
by agency practice by DOD or NASA. 63 Similarly, the licensing of a private
rocket launch is “considered a major federal action subject to environmental
review under NEPA.”64 If a rocket launch, or licensing thereof, is considered
major enough to trigger an EA for its impacts on Earth, it could be warranted that
an EA could be necessary to consider the impacts of a rocket and an operating
spacecraft once they reach outer space. The second provision, “significantly
affects the quality” determines whether an EA and FONSI are sufficient or
whether a full EIS is required. Although this factor would be influenced by quality
issues in outer space, the threshold is whether outer space is part of the human
environment.
From a strict textual perspective, for purposes of Section 102(2)(C), NEPA’s
EA/EIS process applies to outer space activities if outer space is considered part
of the “human environment.” The statute defines neither “environment” nor
“human environment.” A plain text reading of environment would mean that the
56 DAVID B. FIRESTONE AND FRANK C. REED, ENVIRONMENTAL LAW FOR NON-LAWYERS
(4thed. 2008).
57 Id.
58 Id.
59 Id.
60 Id.
61 Calvert Cliffs’ Coordinating Committee, Inc. v. United States Atomic Energy Commission,
449 F.2d 1109 (D.C. Cir. 1971).
62 Firestone and Reed supra note 54.
63 Final Constellation Programmatic Environmental Impact Statement, NASA (January 2008).
https://www.nasa.gov/pdf/207909main_Cx_PEIS_final.pdf; also see section 4.b.
64 FAA supra note 10.2021] Major Federal Actions Significantly Affecting Space Environment 245
human environment is that which surrounds humans. That would include all of
the Earth as well as outer space, or at least the portions in which humans are
present. Historically this would include the Moon, LEO, and may include much
of the solar system in the future. Although the CEQ’s implementing regulations
are only statutory interpretations, its definition of the “human environment” is
inclusive:
“(m) Human environment means comprehensively the natural and physical
environment and the relationship of present and future generations of
Americans with that environment.”65
The language provided is broad and encompassing – it includes all of the
natural and physical environment and can evolve as the relationship of future
Americans with the environmental changes following technological and scientific
advancements.
B. Underlying definitions within the statute
As Section 102(2)(C) contains limited information on determining what
constitutes the “human environment,” we expand our textual analysis to determine
whether there is an indication of legislative intent on this question within the rest
of the statute.
The preamble to NEPA, titled the “Congressional Declaration of Purpose,”
supports a more expansive view of environment. 66 It does not contain language
that limits the idea of environment to the world or Earth. Nor does it contain
language that limits the purpose of the statute only to the national environment.
In announcing a goal “to enrich understanding of the ecological systems and
natural resources important to the Nation,” the statute uses the more expansive
“Nation” instead of more restrictive “United States.”67 Natural resources are of
primary concern to the nation and outer space resources are an integral part of
this. Their status as national resources of interest to the U.S. is underscored by
recent legislative and administrative actions. 68 In such a context, NEPA’s
declaration of purpose would indicate a desire to enrich the understanding of
space resources.
65 Update to the Regulations Implementing the Procedural Provisions of the National
Environmental Policy Act, 85 Fed. Reg. 137, 43304 (July 16, 2020); Note that this Updated regulation
changed the definition of human environment to narrowly focus on Americans.
66 “The purposes of this chapter are: To declare a national policy which will encourage productive
and enjoyable harmony between man and his environment; to promote efforts which will prevent or
eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to
enrich the understanding of the ecological systems and natural resources important to the Nation; and
to establish a Council on Environmental Quality.” 42 U.S.C. § 4321 (1970).
67 People of Enewetak v. Laird, 353 F. Supp. 811 (D. Haw. 1973).
68 Pub. L. 114-90 (2015); Alex Gilbert and Morgan D. Bazilian, We Need a Space Resources
Institute, SCIENTIFIC AMERICAN (April 19, 2019),
https://blogs.scientificamerican.com/observations/we-need-a-space-resources-institute/.246 University of California, Davis [Vol. 44:2
The annual report, that ended in 2000, required that the CEQ includes the
following: “the status and condition of the major natural, man-made, or altered
environmental classes of the Nation, including, but not limited to, the air, the
aquatic, including marine, estuarine, and fresh water, and the terrestrial
environment, land, range, urban, suburban, and rural environment.” 69 Again,
while this section describes different types of environmental classes, it includes
the phrase “but not limited to” which could include outer space. Though the report
is no longer required, its text can indicate legislative intent at the time the bill was
passed.
Section 102(2)(F) requires federal agencies to “recognize the worldwide and
long-range character of environmental problems and, where consistent with the
foreign policy of the U.S., lend appropriate support to initiatives, resolutions, and
programs designed to maximize international cooperation in anticipating and
preventing a decline in the quality of mankind’s world environment.”70
This provision largely deals with international environmental coordination.
While it specifies concerns about the “world environment,” it uses the more
expansive term “world” instead of more limiting “Earth.” While considered
synonyms, textually “Earth” refers to the planet specifically while “world” has
many broader meanings including all human and social interaction. This broader
use of language here resembles that of the District Court in People of Enewetak
v. Laird, which focused on the use of the broad word “Nation” as opposed to more
narrow “United States.”71
Finally, we look at NEPA’s “Congressional Declaration of a National
Environmental Policy.”72 This section contains broad terms that support a wide-
ranging definition of the human environment. In particular, the phrase
“recognizing the profound impact of man’s activity on the interrelations of all
components of the natural environment” can be reasonably understood to include
outer space as a component of the natural environment. The phrase “man and
nature can exist in productive harmony” uses the expansive term “nature.” Finally,
the listing of profound influences includes “industrial expansion, resource
exploitation, new and expanding technological advances.” The first two are
69 42 U.S.C. § 4341 (1970).
70 42 U.S.C. § 4332(f) (1970).
71 People of Enewetak v. Laird, 353 F. Supp. 811 (D. Haw. 1973).
72 “(a) The Congress, recognizing the profound impact of man’s activity on the interrelations of
all components of the natural environment, particularly the profound influences of population growth,
high-density urbanization, industrial expansion, resource exploitation, and new and expanding
technological advances and recognizing further the critical importance of restoring and maintaining
environmental quality to the overall welfare and development of man, declares that it is the continuing
policy of the Federal Government, in cooperation with State and local governments, and other
concerned public and private organizations, to use all practicable means and measures, including
financial and technical assistance, in a manner calculated to foster and promote the general welfare, to
create and maintain conditions under which man and nature can exist in productive harmony, and
fulfill the social, economic, and other requirements of present and future generations of Americans.”
42 U.S.C. § 4331(a).2021] Major Federal Actions Significantly Affecting Space Environment 247
directly related to planned activities in outer space, which are increasingly driven
by commercial concerns. The last is important as it evidences Congressional
concern about how changes in technology could impact the natural environment.
In sum, the statutory text indicates a desire to understand and manage the
relationship between humanity and the total environment. The statute does not
explicitly define the environment, neither limiting it to Earth nor expanding it to
outer space. Rather, the focus is on the interactions between humans and the
environment in which they exist.
C. Identifying legislative intent through legislative history
While legislative history regarding EISs specifically is limited, reviewing
NEPA’s legislative history in terms of broader purposes supports the argument
that outer space should be considered part of the human environment. We
examined the following sources of legislative history to interrogate underlying
intent:
Congressional hearings on NEPA and its precursor bills
Senate, House, and Conference Committee reports73
White paper on the environment, reporting on a Congressional
Colloquium that formed the basis of the bill 74
The first NEPA oversight hearing in the House in late 1970 75
The White Paper on the environment provides several important statements
regarding the international application of NEPA. 76 It includes a witness explicitly
identifying stratospheric contamination as an international environmental
problem.77 On international relations, the White Paper summarized it thusly:
“[a]lthough the influence of the U.S. policy will be limited outside of its own
73 S. REP NO. 91-296 (1969); H.R. REP NO. 91-378 (1969); H.R. Rep No. 91-765 (1969) (Conf.
Rep.).
74 90 REP. NO. 20-218. Congressional White Paper on A National Policy for the Environment
(1968).
75
Administration of the National Environmental Policy Act, Hearings Before the Subcomm. on Fisheries
and Wildlife
Conservation of the House Comm. on Merchant Marine and Fisheries, 91st Cong., 2d Sess., pt. 1-2
(1970)
(Statement and accompanying memorandum of C. Herter., Special Assistant to the Secretary of State
for
Environmental Affairs).
76 See 90 Rep. No. 20-218, supra note 72 at 7 (“Dr. Ripley summarized the feeling of the
colloquium: to speak about environmental quality without at least referring to the fact of the
international components and consequences of even our activity as Americans and considering our
own acreage and our own problems with the environment, appears to me to be somewhat shortsighted
(p. 74).”).
77 Id. (“Dr. Roberts questioned whether these and similar ongoing cooperation efforts were fully
adequate, and proposed that a broader international scheme of cooperative “bench mark” observations
be made. As an example he described the neglected area of stratospheric contamination.”).248 University of California, Davis [Vol. 44:2 borders, the global character of ecological relationships must be the guide for domestic activities. Ecological considerations should be infused into all international relations.”78 Further, the White Paper noted the importance of managing new technologies: “[d]ecisions to make new technological applications must include consideration of unintended, unanticipated, and unwanted consequences.”79 Beyond Committee Reports and the White Paper, outer space also appears frequently in NEPA’s hearings.8081 NEPA’s debate and passage occurred during the Apollo program, including the July 1969 Apollo 11 mission that landed humans on the moon. Generally, outer space was mentioned in three contexts: in terms of providing perspective for human activities on Earth, in terms of NASA as a model for CEQ, and as an element of potential environmental impacts. During hearings, members of Congress and witnesses discussed how the technology needs of spacecraft mimic those of Earth, leading to the concept of “spaceship Earth.”82 Both also discussed how the technological development and research done in the space program should inform the bill’s work to establish the CEQ as an advisory and data gathering body. The potential environmental impact of space activities on Earth’s resources was specifically highlighted due to concerns about rocket launches’ impact on the climate and the need for rare earth metals for spacecraft. Further, the benefits of spacecraft missions to environmental science were also mentioned. There are three specific pieces of legislative history that stand out as indicating Congress considered outer space as part of the environment. First, and weakest, was during hearings on the precursor Resources and Conservation Act of 1961 before the Senate Committee on Interior and Insular Affairs. 83 In a hearing, a Senate witness reviewed definitions of national resources, noting “(t)herefore, I think we are obliged to consider even outer space now a resource of our Nation.”84 Given this is witness testimony for a precursor bill, the weight of this statement is very limited, but its early appearance is indicative of space’s consideration throughout NEPA’s debate. Second, and most definitive, is a report prepared for the Senate Committee by their legislative counsel and an outside specialist that specifically identifies the “outer space environment.”85 This report was commissioned by the main Senate NEPA sponsor and Senate advocate, Senator Jackson. He submitted it into the 78 Id. at 15. 79 Id. at 16. 80 Hearing before the S. Comm. On Interior and Insular Aff., 90th Cong. (1968). 81 Hearing before the H.e SubComm. On Sci., Rsch., and Dev.t, 90th Cong. (1968). 82 Id. at 331. 83 Bills to Declare a National Policy on Conservation, Dev.t, and Utilization of Natural Resources, and For Other Purposes: Hearing before S. Comm. On Interior and Insular Aff., 87th Cong. (1961). 84 Id. at 165. 85 S. REP. NO. 96-999 (1968), at 106, as reprinted in 115 CONG. REC. 26,069, 29,072 (1969).
2021] Major Federal Actions Significantly Affecting Space Environment 249
Congressional record at multiple points. It identifies the “outer space
environment” in the section “National Policy and International Cooperation”:
“The United States, as the greatest user of natural resources and manipulator
of nature in all history, has a large and obvious stake in the protection and
wise management of man-environment relationships everywhere. Its
international interests in the oceanic, polar, and outer space environments
are clear. Effective international environmental control would, under most
foreseeable contingencies, be in the interest of the United States, and could
hardly be prejudicial to the legitimate interests of any nation. American
interests and American leadership would, however, be greatly strengthened
if the Nation’s commitment to a sound environmental policy at home were
clear.”86
While this paragraph is focused on the relationship between domestic policy
and international cooperation, it clearly includes the outer space environment
alongside oceanic and polar environments. It specifically does so by invoking
U.S. interests in “man-environment relationships everywhere,” relevant for
interpretations of NEPA’s “human environment.”87
In a statement included with the report, Senator Jackson’s language focused on
broad policy related to the environment, specifically noting “it needs to be
recognized that the declaration of a national environmental policy will not alone
necessarily better or enhance the total man-environment relationship.”88 As with
NEPA itself, Senator Jackson’s language here and in other parts of the legislative
history promotes a broad conception of the environment, including its
international character.89 Further, Senator Jackson’s goals for NEPA include
“giving the Federal Government an environmental problem anticipatory
capacity.”90 Considering the current, relatively pristine state of most of the space
environment, an anticipatory capacity is relevant for federal government actions.
The third major occurrence is not a piece of direct legislative history. In 1970,
following the bill’s passage, the State Department issued a memorandum
determining to what extent NEPA’s EIS requirement would apply to areas beyond
86 Id. at 106.
87 Id.
88 Id. at 90.
89 “The aim of my bill is to provide a continuing and thorough consideration of our Nation’s
overall progress in meeting national and international problems of environmental management which
are critically important to the well-being of this country.”
Bills to Authorize the Secretary of the Interior to Conduct Investigations, Studies, Surveys, and
Research Relating to the Nation’s Ecological Systems, Natural Resources, and Envtl. Quality, and to
Establish a Council on Envtl. Quality; Hearing before S. Comm. On Interior and Insular Aff., 91st
Cong. 26 (1969) (on file with author).
90 Id. at 28.250 University of California, Davis [Vol. 44:2
the borders of the U.S.91 The memo found that although the EIS requirement
would not apply to federal actions within foreign territory, it would apply to the
high seas, Antarctica, and outer space.92 This memo was specifically cited in a
foreign policy analysis related to NEPA by the DC Circuit Court of Appeals in
Environmental Defense Fund vs Massey.93
As the Massey court notes, the State Department memo itself is not a source of
legislative history.94 However, comments related to it made by key NEPA
Congressional cosponsors following passage can be used to gauge legislative
intent. In late 1970, the first oversight hearing on NEPA’s administration in the
Fisheries and Wildlife Committee, the House committee responsible for passing
NEPA, specifically examined the memo and its application to outer space. 95 In
questioning the Department of State’s counsel, three Representatives specifically
clarified the Department of State’s interpretation of NEPA’s application to outer
space: Congressman Everett,96 Congressman Dellenback,97 and Congressman
Dingell.98
Congressman Dellenbeck’s initial line of questioning of State’s representatives
focused on the role of the State Department in assisting NASA’s NEPA analysis
91 Administration of the National Environmental Policy Act, Hearings Before the Subcomm. On
Fisheries and Wildlife Conservation of the H. Comm. On Merchant Marine and Fisheries, 91st Cong.,
2d Sess., pt. 2, at 546 (1970).
92 Id.
93 Massey, 986 F.2d at 528.
94 Id.
95 Administration of the National Environmental Policy Act, Hearings Before the Subcomm. on
Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 91st
Cong., 2d Sess., pt. 1, at 1121 (1970)(Statement of C. Herter Jr., Special Assistant to the Secretary of
State for Environmental Affairs).
96 Id. at 1127. “Mr. EVERETT. Mr. Herter, in your statement you have interpreted the National
Environmental Policy Act as not applying to the jurisdiction of other countries. You also indicate that
it does apply to the high seas, Antarctica and one other area.
Mr. HERTER Space.
Mr. EVERETT. And space.”
97 Id. at 1129. “Mr. DELLENBACK. Thank you, Mr. Chairman. Do I understand correctly, Mr.
Herter, from what you implied to counsel earlier, and I didn’t find it as such in your statement but I
assume you made the comment, that you would feel that while the provisions do not apply to foreign
jurisdictions it would apply to the high seas and to space. Is that correct?
Mr. HERTER. That is correct. This is counsel’s interpretation. If it is not within the national
jurisdiction of some other country, it would be subject to an environmental impact statement.”
98 Id. at 1139. “Mr. DINGELL. Mr. Herter, you have indicated in your statement and in the
supporting memorandums that it is your feeling that the provisions of 102(2) (C) do not apply to
actions in the State Department abroad. You have, however, subsequently somewhat qualified that by
indicating that where actions of the State Department or State Department agencies or matters that are
brought to the attention of the State Department dealing with areas which are clearly not under the
jurisdiction of any one nation such as, for example, in outer space or in international waters, that then
it would be your view that the provisions of 102(2) (C) and the rest of the Environmental Policy Act
do have a bearing. Am I correct in my interpretation of this?
Mr. HERTER. This is correct.
Mr. DINGELL. And they then do apply.”2021] Major Federal Actions Significantly Affecting Space Environment 251
for activities in outer space.99 Upon learning that the State Department did not
intend to prepare an EIS for NASA’s proposed space shot but would comment on
a NASA EIS if requested to do so. Congressman Dellenbeck requested the
Committee inquire with NASA about whether such an EIS was underway. He
made this comment that directly implicated space as an environment covered by
NEPA: “May I make that suggestion, Mr. Chairman? Because we are, of course,
in the very early stages of what happens so far as the environment is space is
concerned. What. Mr. Herter has said this morning opened the line of inquiry up
in my mind when he made clear that the statute which was passed would apply,
as he put it, to all areas where foreign jurisdiction did not enter to preclude our
being involved.”100
While the Congressman is asking to what extent NEPA’s EIS requirement
applies to space, it is important to read the hearing transcript in light of the
legislative history of the EIS provision (102(2)(C)). The original House version
of NEPA, that passed the Fisheries Committee and the whole House, did not have
the provision. It was only added following the House and Senate conference.
Accordingly, while Congressman Dellenbeck’s line of questioning is about the
extent to which 102(2)(C) would apply to federal actions abroad, the premise of
his question includes space as part of the environment.
Further, the hearing must be interpreted in context of its purpose. The goal of
the hearing was for the House committee responsible for NEPA to understand its
implementation and determine if NEPA required any amendments. 101 In asking
whether the State Department thought any amendments were necessary,
Congressman Dellenbeck specifically identified his interpretation of NEPA’s EIS
application to space, while also including areas outside of the U.S., including
space, as part of the “total environment” and “worldwide environment.” 102 He also
99 Id. at 1130. “Mr. DELLENBACK. How about the space shot that is coming up? Has the State
Department made an environmental impact statement in connection with that proposed shot?
Mr. HERTER. I can’t answer that statement, I don’t know.
Mr. SALMON. No, sir, we have not prepared such a statement.
Mr. DELLENBACK. Have you been called upon to make such an estimate?
Mr. HERTER. No, sir.
Mr. DELLENBACK. Do you feel, if called upon, that the Department of State should comment on a
space shot?
Mr. SALMON. No, sir, I feel this would be the responsibility of theaction agency, NASA, in this case.
Mr. DELLENIBACK. Under the terms of the statute the agency which is primarily involved in a
project also calls upon sister agencies which have any expertise in the field to make comments thereon.
I would assume under those circumstances that what expertise does exist in a few of the international
issues involved as far as space is concerned.”
100 Id.at 1130-31.
101 Id.
102 Id. at 1133. “Do you see any possible impact on these areas outside the Continental United
States, in space, on the high seas, where we ought to be amending NEPA ? Is there anything that is
not covered that ought to be covered in the present statute? That is part of the reason for these hearings
that we are having, that we don’t have to find out that which is, but we are really seeking to see whether
departments like yours have any comments about that “which ought to be.” The problems of pollutionYou can also read
